Citation Nr: 21076086 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 15-11 786 DATE: December 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder, as secondary to diabetes mellitus, type II (hereafter diabetes) with erectile dysfunction (hereafter ED), is granted. FINDING OF FACT The Veteran's depressive disorder is proximately due to his service-connected diabetes. CONCLUSION OF LAW The criteria for secondary service connection for depressive disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board previously remanded this matter four timesin March 2021, December 2020, July 2020, and September 2018. The most recent remand directed the AOJ to obtain updated VA treatment records and an addendum medical opinion. Upon remand, an addendum medical opinion was obtained in April 2021. The Veteran asserts that his acquired psychiatric disorder is related to his ED. See, e.g., September 2021 Informal Hearing Presentation. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to direct service connection, a veteran must show (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to or aggravated by a service-connected disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. As discussed below, the present record supports a grant of the benefit sought on appeal on a secondary basis without a baseline deduction. Accordingly, the Board will focus its analysis on secondary service connection. Here, the Veteran has current diagnosis of an acquired psychiatric disorder, including a depressive disorder. See March 29, 2021 VA Treatment Note (noting generalized anxiety and depression); November 8, 2012 VA Treatment Note (diagnosis of depressive disorder); October 2, 2020 VA Treatment Note (noting diagnoses of depression, not otherwise specified and generalized anxiety disorder); see also April 2021 DBQ (diagnosis of unspecified depressive disorder). Although, as discussed below, the April 2021 disability benefits questionnaire (DBQ) is not reliable, the Veteran's VA treatment records show a diagnosis of a depressive disorder over many years and the Board finds that these records are probative evidence of a current depressive disorder. Thus, the first element of service connection is met. He is also service-connected for diabetes with ED, and thus the second element of secondary service connection is met. Accordingly, the crux of this appeal centers on the issue of nexus, i.e., whether there is an etiological relationship between the Veteran's acquired psychiatric disorder and his ED. In this regard, the April 2021 VA examiner opined that it is less likely than not that the Veteran's unspecified depressive disorder is proximately due to or aggravated by his service-connected disability; however, the examiner's opinion is flawed, as were all prior medical examinations and opinions of record. The latest examiner's opinion is conclusory, contains factual inaccuracies, and in substantial part addresses questions that are unrelated to secondary service connection. These problems were also present in prior opinions of record. Moreover, the April 2021 opinion addressing secondary service connection based on aggravation inexplicably addresses events in service and largely tracks the examiner's opinion regarding whether the Veteran's acquired psychiatric disorder pre-existed service and was aggravated by service, i.e., service connection based on aggravation pursuant to 38 C.F.R. § 3.306. This type of service connection based on aggravation is wholly unrelated to secondary service connection, and the examiner's rationale and opinion are thus inapposite as to whether the Veteran's post-service depression was aggravated by his post-service disabilities. Moreover, the examiner's opinion addressing secondary service connection based on proximate causation is conclusory, and the examiner incorrectly states that the Veteran's diabetes with ED and depression manifested in "different time frames" notwithstanding that at present the Veteran has concurrent diagnoses of ED and depression. Although the opinion is unclear, it appears that the examiner is repeating the errors of prior examiners by focusing on a relationship between the Veteran's current disability and his military service. That defect renders the April 2021 examiner's opinion inadequate. Indeed, the Board observes other errors in the examiner's methodology. In an opinion addressing direct service connection, the examiner erroneously concludes that because the Veteran was a field wireman in Vietnam, he did not encounter direct combat and, presumably, could not have seen cadavers in a freezer. The statement demonstrates that the examiner must not have fully examined the record, as the Veteran had previously explained the experience in question. See, e.g., July 2019 DBQ Medical Opinion (describing being brought to the freezer containing Vietnamese cadavers). In short, the April 2021 medical opinion is unreliable. The Board refuses to remand this claim a fifth time, as a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); see Andrews v. McDonough, 34 Vet. App. 216 (2021) (Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim."). In this regard, competent medical evidence establishes that the Veteran's service-connected ED has impacted his self-esteem with repercussion on his intimate relations. See July 2019 DBQ. Further, this evidence shows that the Veteran's ED is likely at least a contributing cause to his depressive disorder. See, id. (discussing ED as not the "sole etiology," of his psychiatric condition, raising the inference that it is a contributing factor.) Taken as a whole, the examiner's opinion demonstrates that the examiner believed that the Veteran's ED was a minor factor in his current acquired psychiatric disorder. This establishes an etiological nexus and satisfies the criteria for secondary service connection. The Board acknowledges that it previously found the July 2019 examiner's opinion inadequate. See July 2020 Board Remand. The examiner's negative opinion is indeed inadequate, and the reasons cited by the Board include the examiner's focus on whether ED was the sole etiology of the Veteran's acquired psychiatric disorder. While this compromised the examiner's negative opinion, it provides support in favor of the claim. And while the probative weight of this evidence is not high, the evidence showing that the Veteran's acquired psychiatric disorder is to some degree etiologically related to his ED is in approximate balance with the evidence against the appeal, and thus the Veteran is entitled to the benefit of the doubt. See also Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). The Board has remanded this claim many times in an effort to obtain an adequate medical opinion but has been unable to do so. As the July 2019 examiner's opinion supports secondary service connection, the present record is sufficient to grant the appeal. Hence, further attempts at securing an adequate medical opinion would result in merely seeking evidence to deny the claim. The Board acknowledges that the examiner's opinion only indicates mild symptomatology associated with ED. However, the present appeal is limited to whether there exists any psychiatric disorder warranting service connection; questions relating to the appropriate rating are a downstream issue. Finally, the Board observes that the Veteran's initial claim sought service connection for posttraumatic stress disorder (PTSD), and the claim was subsequently broadened and recharacterized as seeking entitlement to service connection for an acquired psychiatric disorder. The most probative evidence of record does not show the presence of a current diagnosis of PTSD, and in any event the Veteran is entitled to compensation for his psychiatric symptoms caused by his ED, however those symptoms are characterized. Accordingly, for the reasons and bases detailed above, the benefit sought on appeal is granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Saumur, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.